INternational Journal of Criminal Justice
Sciences

Vol 1 Issue 1 January 2006

This article
is aimed to show, in spite of the equality that people are
entitled to before the law; in practice access to justice
does not work exactly as the theory says it should.
While
the legal aid department aims to provide legal assistance
to the poor, it has failed to deliver such services to all
those who need them.
The
exposure of conditions in the criminal justice system in
Africa is largely initiated by Penal Reform International
(PRI). PRI examined and analyzed the conditions in
Malawi’s criminal justice system and discovered gross
human rights abuses. The Human Rights Commission of Malawi
has described the country’s criminal justice system as
weak, citing justice is compromised because of the too
many archaic laws on the statute books and denial of
justice due to lack of legal representation for the
indigent. For instance, fifty percent of the prisoners
were on remand awaiting trial.
Some of them have stayed more than seven years in prison
without having their cases heard in court.

In this research
article, I will talk about the international NGO Penal
Reform International and two locally-based legal aid NGOs:
Eye of the Child and Centre for Advice, Research and
Education on Rights: CARER. The term ‘Malawi CARER’ will be
used throughout this text. The most essential functions
performed by these NGOs are in the area of human rights
work, legal aid, and penal reform. Penal Reform
International was invited to Malawi by Malawi CARER to look
at human rights abuses in the prisons, extended remands and
lack of legal representation. The Paralegal Advisory Service
work programme was created to remedy the gross miscarriage
of human rights in Malawi’s prisons and to provide legal
assistance for indigent prisoners.

Malawi’s
Legal Aid Department

The Legal Aid
Department in Malawi operates under the Ministry of Justice
(Gama, 2004; Mwale,
2004).
The criteria for evaluating legal aid eligibility involves
the magistrate assessing the economic means of the person
and determining whether the person can afford commercial
legal services or legal aid (Gama, 2004). Nonetheless, some
people bypass the magistrate criteria and go to the legal
aid offices themselves. After this assessment, the person
may be asked to contribute a small fee towards the legal aid
service. The majority of people present themselves as poor
and claim that they can not afford to make any contribution
towards this service.

Inherent
Reasons for Problems

According to
Phiri, despite the equality that people are entitled to
before the law, in practice access to justice does not work
exactly as the theory says it should. For example, justice
for the rich and poor is not always identical. A rich person
can employ the best lawyers to present his defence; whereas
the fate of the poor person lies in his own hands or the
service of public legal aid which is only a little better (Phiri,
2004).

The number of
lawyers in Malawi is relatively low and their fees are very
high (Namangale, 2004). There are 300 qualified lawyers for
11 million people (Nyirenda, 2004; Ndalahoma,
2004; Kasambara, 2004; Banda, 2004; Chirwa, 2004),
representing a ratio of 1:40,000 (Nyirenda, 2004). There is
only one legal aid lawyer in the Southern Region of Malawi,
which has the highest population concentration in the
country compared to the Central and Northern regions. There
are three legal aid lawyers servicing the Central and
Northern regions. There is no legal aid office in the North
and all the cases are handled in the Central Region office,
which is also the headquarters for the Legal Aid Department.
While the legal aid department aims to provide legal
assistance to the poor, it has failed to deliver such
services to all those who need them (Namangale, 2004;
Kamwambe, 2004; Gama, 2004).

One of the main
problems has been the lack of financial and material
resources which translated into an aggravated problem in
retaining lawyers (Tayanjah-Phiri,
2004).
Because of the very few lawyers available in the department,
this was hindering the Legal Aid Department operations (Tayanjah-Phiri,
2004;
Namangale, 2004; Kamwambe, 2004; Gama, 2004). The Legal Aid
Act of 1978 mandates the Ministry of Justice to hire private
lawyers, but the government’s rate of payment per case has
not been revised since 1978 (Tayanjah-Phiri,
2004). As such private lawyers are not attracted to
government services.
The majority of Malawian citizens cannot afford legal
representation and have therefore to defend themselves (Eye
of the Child, 2004; Phiri, 2004; Ndalahoma, 2004).

External
Reasons for Problems

The hiring of
private lawyers is very expensive even for those individuals
considered to be of higher economic status in Malawi.
Because of the limited availability of legal aid lawyers to
represent the poor people, most poor people undergo
magistrate trial without legal representation (Gama, 2004;
Matewere, 2004; Ndalahoma, 2004). The Malawi Human Rights
Commissioner (MHRC) has said that access to justice in
Malawi is being compromised, which is a threat to the rights
of the accused. It is illegal to hold remanded persons for
long a time without bringing them to court. The prisoners’
right to justice is being compromised because most of them
are held for a very long time on expired warrants. These
remanded persons do not have money to hire lawyers to push
for a speedy trial (Kamanga, 2003; Gama, 2004).

“Poor people
are often denied justice. When they are accused of a crime,
they are unable to hire top class lawyers. Of course, they
may receive assistance from legal aid officers but that is
not the same thing as hiring your own preferred lawyer.
Often cases in which poor people are involved take a long
time to handle. Courts will tell the public that the cases
are pending because of shortage of funds and staff. But let
the big politicians sue each other, their cases are sorted
out within days or weeks” (Phiri, 2004a:5).

There are two
sections in the legal aid act; the first dealing with
defence and another with prosecution. In the absence of
legal representation, the magistrate is obliged to ensure
that in cross examination, the magistrate offers some degree
of protection to the person in case a prosecutor or defence
lawyer tries to exploit the situation. For instance, in the
cross-examination, the magistrate will obtain from the
lawyers what they want from the accused person and then
simplify it for the accused person to answer. This should
not be interpreted as a proper substitute for legal
representation (Gama, 2004; Kamwambe, 2004). This is normal
for the magistrate court, but if it is in a high court case,
the case is dismissed until the government is able to
provide a lawyer for the accused (Kamwambe, 2004). As such,
many criminal suspects on murder and manslaughter charges
are imprisoned indefinitely because of lack of legal
representation to try their cases in the high courts (Ndalahoma,
2004; Kamwambe, 2004; Gama, 2004).

Intervention
towards Improvement

In
1995, Malawi CARER invited Penal Reform International to
Malawi. In 1999, Malawi CARER in partnership with Penal
Reform International (PRI) embarked on a nationwide
assessment of the prisons throughout Malawi. Their findings
generated major reforms in some prisons in Malawi. PRI
examined and analyzed the conditions in Malawi’s prisons and
discovered the following: the police abandoned criminal
suspects in prison; poor people were over-represented in the
prisons; many remanded persons were held unlawfully because
their warrants were expired; many criminal suspects were
held longer than their specified sentence without trials;
the prisoners did not understand the law; and the convicted
prisoners were ignorant on how to access their appeal
procedures. In addition to this, the criminal justice
agencies themselves were poorly equipped, resourced and
trained, and there was a significant lack of government
legal representation (PRI, 2002; PAS, 2004; Ndalahoma, 2004;
Kerrigan, 2002; Kasambara, 2004; Banda, 2004; Chirwa, 2004).
The lack of government resources has adversely affected the
criminal justice system, which has resulted in the lack of
legal representation for poor and indigent inmates.

Penal Reform
International (PRI) through its fact
finding missions on prison conditions throughout the
continent of sub-Saharan Africa it has confirmed
deplorable conditions in many prisons in Africa including
those in Malawi. Here is what PRI found: overcrowded
prisons, few African countries were capable of providing
legal assistance to prisoners as
demanded by international human rights treaties, the
criminal laws were poorly written and high numbers of
inmates were awaiting trial across the continent. For
example, in Malawi’s prisons,
fifty percent of the prisoners were on remand awaiting trial
(Justice Initiative, 2003;
Msiska, 2003; Open Society Justice Initiative, 2003; Penal
Reform International, 2003).

According to Muwamba, the
Malawian Human Rights Commissioner said, “people in the
country’s prisons spend too much time on remand before being
taken to court to face justice on the offences they were
accused for” (Muwamba, 2004:2). The Mzuzu Prison was
built to house one hundred inmates; yet it holds a daily
average capacity of five hundred prisoners (Nicholls, 2004;
Tayanjah-Phiri, 2003). The inmates and remanded persons at
the Mzuzu Prison have alleged that the government
ill-treated them. Some of them have stayed more than seven
years in prison without having their cases heard in court (Tayanjah-Phiri,
2003). The
proposed method by PRI to reduce this number has been to
provide the prisoners with the basic
legal knowledge, through paralegal aid, for their own
defence (Justice Initiative,
2003; Msiska, 2003; Open Society Justice Initiative, 2003;
Penal Reform International, (2003). The costs of legal aid are as
much of a problem throughout sub-Saharan Africa as in
Britain. The difference is that the access to justice is
crucially different in sub-Saharan Africa where there is
little or no provision in the way of legal representatives
(Nicholls, 2004), for the poor. Penal Reform
International successfully lobbied for funding that provides
legal aid assistance through the Paralegal Advisory Service
for suspected criminals and convicted criminals living in
Malawi.

The Paralegal
Advisory Service (PAS) in Malawi

The Paralegal
Advisory Service is an advisory council which is made up of
senior prison officers, police officers and members of the
judiciary. They provide the guidance and endorsement for the
Paralegal Advisory Service. This project originally targeted
homicide cases but was later extended to cover remanded
prisoners and vulnerable groups among the convicted
prisoners such as women, juveniles, terminally and mentally
ill people and foreign inmates (Kerrigan, 2002; Malawi Prison Service,
2002;
Ndalahoma, 2004; Malawi CARER,
2004; Penal Reform International, 2003). The project was
funded by the British Department for International
Development (DFID) and is currently on a pilot basis in four
major court centres in the country, four principal police
stations and four prisons (Ndalahoma, 2004; Kasambara, 2004;
Banda, 2004; Chirwa, 2004).

The purposeof the Paralegal Advisory Service is to provide
appropriate legal aid to poor people using non-lawyers on
the ‘front line’ of the criminal justice system. This
approach is to advocates for the welfare of prisoners
nationwide.The role of
the Paralegal Advisory Service (PAS) NGOs has been to help
to introduce and spread civic education to prevent crime by
educating the communities through the creation of youth
groups. PAS also aids in the development of mediation and
community policing to divert many cases from the state
criminal justice system to the community village chiefs and
village headman. The
Paralegal Advisory Service has developed paralegal clinics
in prison to educate prisoners in the basic law and
procedures that are applicable to their specific situations
and enable them to represent themselves in the magistrate
courts and assist convicted prisoners with their appeals to
the high courts (PAS, 2004; Kerrigan, 2002;
Ndalahoma,
2004; Kasambara, 2004; Banda, 2004; Chirwa, 2004).

The Paralegal
Advisory Service (PAS) has come to realize that people
cannot defend their rights unless they know their rights.
Every person who is charged with one or more criminal
offence which carries a sentence of death or imprisonment
for life is entitled to legal representation at the expense
of the state (Achieng, 1999; Gama, 2004; Phiri, 2004;
Ndalahoma, 2004). The objectives of the Paralegal Advisory
Service (PAS)project are as follows: improved access
to justice, improving conditions in prisons, civic education
to prisoners on the law and their rights and simplifying
court and criminal procedures for prisoners (Kerrigan, 2002;
Malawi Prison
Service, 2002; Ndalahoma, 2004; Malawi CARER,
2004; Penal Reform International, 2003).

Paralegals

The
paralegals are lay workers with elementary training in law (Malawi
Prison Service, 2004). They have been
described as “barefoot doctors” providing legal aid to
prisoners (Nicholls, 2004).The paralegals in Malawi provide
legal advice to poor prisoners free of charge since they
cannot afford the legal fees charged by private
practitioners. Although the state provides legal counsel
from the Ministry of Justice in Malawi this counsel is
unable to handle the huge backlog of cases (Malawi
Prison Service, 2004; Ndalahoma, 2004).
Prior to the creation of Paralegal
Advisory Service, indigent prisoners had little or no access
to legal aid and convicted prisoners had no access to an
appeal. For example, it was common for remanded prisoners
to spend years waiting for their trials and in the interim
some of them became ‘lost or forgotten’ [this means there is
no file on them] by the criminal justice system (PAS, 2004;
Ndalahoma, 2004; Kerrigan, 2002; Kasambara, 2004; Banda,
2004; Chirwa, 2004).

The work of the paralegals in
the criminal justice system has led to the release of
thousands of prisoners. This was achieved through the use of
bail, discharge of the case, dismissal or release of
prisoners on compassionate grounds. The paralegals
work within the criminal justice system to inform criminal
suspects of the legal process and their rights under the
law. The job of the paralegal is to inform the criminal
suspects what the law means and how it works. The paralegals
attend trials and monitor cases to protect the prisoners’
rights by providing them with the best justice possible and
safeguarding their human rights. Paralegals assist juveniles
at police stations with police interviews and assist in the
screening of juveniles for diversion programmes (Malawi
Prison Service, 2002; PRI, 2002; PAS, 2004; Ndalahoma, 2004;
Kerrigan, 2002; Kasambara, 2004; Banda, 2004; Chirwa, 2004).

The paralegals
assist the courts, police and prisons by providing the
appropriate legal advice and assistance to the maximum
number of qualified people in the prisons. Only the poor are
over represented in Malawi’s prisons (Chirwa, 2004;
Ndalahoma, 2004) and ninety-nine per cent of the prisoners
lack legal representation.Because the prisoners were
mostly poor and illiterate, they do not understand the law.
A series of practical modules were developed to inform them
about criminal law and procedures and enable them to
represent themselves in court. The Paralegal Advisory
Service developed bail and appeal forms in agreement with
the judiciary and followed up individual cases with the
police and courts (Matewere, 2004; PAS, 2004; Kerrigan,
2002; Ndalahoma,
2004; Kasambara, 2004; Banda, 2004; Chirwa, 2004).

Paralegal
Training and Qualification

The paralegal
training curriculum introduces the participants to the
Malawi legal system.Some of the areas covered are as
follows: the statutes, civil and criminal law and procedure,
family law, constitutional law, land law and human rights
and democracy. The natures of case handled are as follows:
deprivation of property by inheritance [popularly referred
to as ‘property grabbing’], land disputes, child custody,
child abuse, maintenance claims, unfair labour practices,
police brutality, sexual harassment and violence against
women (Malawi CARER, 2004). The education of the paralegals
is continuous. The paralegals are cheaper to train than
lawyers, and with proper training they enable the inmates to
defend themselves. By educating prisoners on the law and
procedure, prisoners enter more informed pleas to their
charge, saving considerable court time and expense (Matewere,
2004; Ndalahoma, 2004; Kerrigan, 2002; Kasambara, 2004;
Banda, 2004; Chirwa, 2004).

Initial
Resistance to Paralegals

There was initial
resistance to the paralegals from magistrates, police,
prison officials and lawyers. This mistrust was the first
problem to overcome in the prisons. The daily presence of
the paralegals in the prisons involved the participation and
mutual support of prison officers. To secure their
cooperation, prison officers were invited to participate in
training courses such as conflict management in prison. This
eventually helped the prison officers to respect and
cooperate with the paralegals (Ndalahoma, 2004; Kerrigan,
2002; Kasambara, 2004; Banda, 2004; Chirwa, 2004).

Magistrates

There was also
resistance from some members of the magistracy, and the
paralegals were able to address this by consultation with
prosecutors and by encouraging magistratesto
enter prisons and screen some of the cases. From this came
the Court Camp Project; court camps are magistrate courts
held in prisons to hear minor criminal cases and release
prisoners to serve their sentences in their communities. In
the process, this eases prison overcrowding and saves prison
budget money (Malawi Prison Service, 2002; Ndalahoma, 2004;
Kerrigan, 2002; Kasambara, 2004; Banda, 2004; Chirwa, 2004).

The Police
Services

The police were
reluctant to cooperate with PAS until the paralegals found a
way to enlist the support of the police by helping juvenile
delinquents. The paralegals offered to assist the police in
tracing the parents of juvenile delinquents, and they worked
with the police on a screening form to divert young
offenders, where appropriate, out of the criminal justice
system. This quid pro quo arrangement with the police
allowed the paralegals to attend interviews to ensure that
the rights of the juvenile suspects were respected(Ndalahoma,
2004; Kerrigan, 2002; Kasambara, 2004; Banda, 2004; Chirwa,
2004). For instance, when a juvenile is apprehended and
taken to the Blantyre Police Cell, the police would notify
Eye of the Child. It was also as a result of this quid pro
quo relationship I was able to interview juveniles in police
custody at the Blantyre Police Cell.

Lawyers

The Law Society
of Malawi also fears competition from the paralegals. The
paralegals in turn emphasize that they do the work that does
not need a lawyer and this service creates work for the
lawyers interested in criminal matters. Despite requests
from the judiciary, the PAS refuses to appear in the lower
courts on behalf of accused persons because legal
representation is seen to be the strict province of the
lawyer(Ndalahoma,
2004; Kerrigan, 2002; Kasambara, 2004; Banda, 2004; Chirwa,
2004).

The Women Lawyers
Association (WLA) is committed to working free of charge, in
collaboration with interested male lawyers and law students,
to represent indigent women and children (Mangwana, 2004;
Paliani-Kamanga, 2004). Some of these cases include property
grabbing, non-payment of maintenance, spouse abuse and
domestic violence. Many poor women have limited access to
legal services. This, in association with social attitudes
on women and the family, may contribute to the perception
that these social problems are not criminal offences. The
purpose of this project is to work one day a week and assist
the Ministry of Justice to reduce their case backlog, which
has ignited complaints of the government’s inability to
handle these cases due to shortage of staff. The women
lawyers are working in the legal aid departments in Blantyre,
Lilongwe and legal aid clinics to be established in Zomba
and Mzuzu. WLA will be selective in the cases that they
accept; said cases will involve mediation and litigation (Paliani-Kamanga,
2004).

The Paralegal
Advisory Service
Achievements

The Paralegal
Advisory Service brings the criminal justice actors together
by directly working in a partnership with these agencies and
through monthly Court User Committee meetings. The paralegal
team leader attends monthly meetings with the prison
officials, police chiefs and judicial officers to check on
their progress and address any problems or complaints. These
monthly meetings have changed attitudes that were initially
perceived as threats by the presence of the paralegals.
These changes for the better have manifested themselves in
the following ways. First, the magistrates have commented on
the understanding of the law demonstrated by prisoners in
court and noted that prisoners were entering informed pleas
at court. Second, the magistrates are increasingly entering
the prisons through camp courts to screen the remand
caseload. Third, results from nineteen Camp Courts held in
the period May-October 2003 show that over one hundred and
fifty prisoners have been released (Ndalahoma, 2004;
Kerrigan, 2002; Kasambara, 2004; Banda, 2004; Chirwa, 2004).

In addition, the
numbers of illegal remand warrants used by the police has
fallen and a substantial number of the old cases have been
processed by the courts. A substantial number of juveniles
in conflict with the law have been diverted from the
criminal justice system at the police stations. For
instance, in the first six months of the PAS pilot scheme,
over thirty juveniles were successfully diverted from
further involvement in the criminal justice system. Also,
paralegals inform lawyers that they provide services for the
lawyers and the PAS cannot be substituted for legal
representation. Lastly, the paralegals have highlighted
health problems within the prisons which health-oriented
NGOs are working to improve (Ndalahoma, 2004; Kerrigan,
2002; Kasambara, 2004; Banda, 2004; Chirwa, 2004). The
paralegal NGOs that I have interacted with are Eye of the
Child and Malawi CARER.

Malawi CARER
Paralegal Advisory Services

Due to
understaffing at the Legal Aid Department, Malawi CARER
offers paralegal services and legal representation in the
courts.The services received are modelled on a
citizen’s advice bureau using the paralegals and the lawyers
to provide primary advice to the clients and making
referrals when necessary to the Legal Aid Office, other
agencies or lawyers in private practice willing to assist.
Malawi CARERcarries out civic education programmes.
The educational materials are produced in both English and
the local vernacular and cartoons are included to facilitate
understanding because many beneficiaries of the service are
illiterate. Posters and booklets on human rights are also
included, for example, a series of four booklets on
prisoners’ rights are in circulation. These booklets have
been distributed to prison staff, prisoners and the general
public (Chirwa, 2004).

Malawi CARER
brings human rights violations to the attention of the
appropriate authorities. It also monitors unfair labour
practices in the country such as child labour
on the tea and tobacco estates (Ebere, 2004), and condemns
these violations through press releases(Malawi
CARER, 2004). For example, in the case of Alice Joyce
Gwazantini vs. State, the defendant was found guilty on 21st
May 2004 and sentenced to death for causing the death of her
13 year old child servant, whom she had doused with boiling
water in July 2001 (Chapalapata, 2004; Kumwenda, 2004).
Malawi CARER works in collaboration with other international
donor agencies to improve the living conditions of prisoners
and make prisoners aware of their rights. Malawi CARER is a
very successful NGO and has worked hard in lobbying donors
to help prisoners. Malawi CARER provides all the functions
and more compare to Eye of the Child which has been growing.

Eye of the
Child Paralegal Advisory Service

Under the
Paralegal Advisory Service project Eye of the
Child is responsible for Chichiri Central Prison, Blantyre
Magistrates Courts and Blantyre Police Cell. Eye of the Child is an active
and registered member of the Council for non-governmental
organizations in Malawi (CONGOMA) and the National Youth
Council of Malawi (NYCM). Eye of the Child works in
conformity with the provisions of the Malawi Laws and the
Malawi Constitution and its activities are based on the
Convention on the rights of the Child (CRC). Eye of the
Child works to create the space and platform for advocacy
and projects on human rights issues that protect the rights
of young people especially those in conflict with the law
(Eye of the Child, 2004; Matewere, 2004;
Ndalahoma,
2004).

Methodology

I
gained access to Chichiri Central Prison,Blantyre
Magistrates Courts and Blantyre Police Cell with the
paralegal staff of the Paralegal Advisory Service, Eye of
the Child. The
fieldwork involved visits to: the local prison, magistrate
courts, local NGOs, and visits to government offices. The
data collected focused on several social problems currently
facing the criminal justice system in Malawi, juvenile
delinquents and prisoners. The sample of participants
interviewed consisted of the following: magistrates, judges,
chief of police, probation officers, and social workers,
several NGOs program directors, paralegals, government
social workers, and juveniles in custody. The juveniles’
ages ranged from 13 to 20 years with a mean age of 16.5
years for the juveniles in reformatory, and 17 years for the
juveniles in prison and jail. Translators were used to
achieve the research goals. They were paralegals, social
workers, and program directors. The interviews with the
juveniles in custody and prisoners were achieved with the
assistance of several translators.

Analysis and Conclusion

Through
government cooperation, NGOs have been able to access
prisons and educate prisoners about their rights and in the
process change the attitude of the government and the
general public towards prisoners. The paralegal advisory
teams hold a number of paralegal legal aid clinics in the
four main prisons and observe the subsequent trials.
Despite having these paralegal NGOs, the need for legal aid
remains great. The government is unwilling to invest money
in the criminal justice system which also affects the legal
aid services.

The Paralegal
Advisory Service is a service meant to acquaint offenders
with the court process and legal issues involved. Under the
project, remanded prisoners in Malawi were given advice on
how to conduct their own defence, on court procedures and
elementary advice on how they can secure their release from
prison. The Paralegal Advisory Service also educated
prisoners on the benefits of plea-bargaining. This meant
that prisoners charged with more serious offences requiring
a longer trial or sentence could plead to a lesser charge
hence ensuring speedy conclusion of cases. For example, a
prisoner charged with murder may plead guilty to a lesser
charge of manslaughter.

The paralegals work with the
prison service, police and the courts to ensure that files
are dealt with in due course and the prisoners are
informed. The paralegals have been working in the prisons
by educating the prisoners on legal advice, and attending to
bail referred cases for lawyers. They work with all
prisoners and give priority to the vulnerable groups such as
juveniles and women with children in prison, the mentally
ill, the very sick prisoners, and incarcerated foreigners.
Paralegals also attend trials and write reports.

Finally, the
Paralegal Advisory Service brings the criminal justice
actors together by directly working in a partnership with
Malawi Police Services, Malawi Prison Services and
Judiciary. By gaining
the cooperation of all criminal justice agencies working
together in joint effort there has been remarkable
accomplishments in the reduction of case overloads and
prisoners awareness on their human rights. The paralegals
assist the courts, police and prisons by providing the
appropriate legal advice and assistance to the maximum
number of qualified people in the prisons and juveniles in
police cells. They inform the prisoners on their rights
under the law and the criminal justice procedures.

Open Society
Justice Initiative, (2003) .Combining Learning and Legal
Aid: Clinics in Africa. Colloquium on Clinical
Legal Education. Association of
University Legal Aid Institutions of South
Africa. University of Natal. 23-28 June 2003.